Even with the COVID-19 vaccines being distributed, the pandemic still requires businesses to rethink how to protect their employees, customers and other stakeholders. The U.S. Occupational Safety and Health Administration (OSHA) has taken an increased role in responding to complaints and investigating instances of COVID-19-related workplace hazards.
As of Dec. 24, 2020, OSHA had conducted 294 inspections for violations relating to coronavirus, resulting in proposed penalties totaling $3.8 million. The average citation has been $13,093 per inspection.
Much of OSHA’s recent enforcement activity has targeted essential industries where employees may be at increased risk of contracting COVID-19, including: health care occupations; retail establishments; grocery stores; construction; meatpacking and processing; warehousing; restaurants and lodging establishments; and automotive repair. OSHA estimates that these activities have mitigated exposure to COVID-19 hazards for more than 643,000 workers.
As with any workplace hazard, an OSHA inspection could be triggered by several events, such as: a planned inspection; referral from another agency or source; following an employee complaint; or in the event of a death or serious injury.
The absence of a federal emergency standard for COVID-19 workplace safety has not prevented OSHA from issuing citations under existing regulations, including:
Respiratory Protection standard (29 CFR 1910.134), which requires employers to provide adequate protection to employees exposed to respiratory hazards.
Personal Protective Equipment (PPE) standard (29 CFR 1910.132), which requires employers to provide adequate protective clothing (such as eye, face, hand and body protection) to protect against hazards present in the workplace.
Injury Recording and Recordkeeping standards (29 CFR 1904) requiring employers to adequately record and report injuries, illnesses and fatalities.
The General Duty Clause (Section 5(a)(1) of the OSH Act), which requires employers to provide a workplace free of recognized hazards likely to cause death or serious physical harm.
Employers who make good faith efforts and implement effective procedures will not only help to protect employees and the business but mitigate any potential OSHA response. Follow the recommendations issued by OSHA, the U.S. Centers for Disease Control (CDC), as well as state and local jurisdictions:
• Implement methods for employee screening or self-certification before reporting to work.
• Provide the appropriate PPE for employees, including face coverings.
• Establish physical barriers, optimize workspace layout or limit capacity to allow for adequate social distancing.
• Leverage technology to minimize the occurrence of face-to-face meetings.
• Establish regular cleaning and sanitization protocols of high touch surfaces, tools and equipment.
•Develop a plan to respond to a confirmed or suspected case of COVID-19 in the workplace. Should a case of COVID-19 occur, it is also important to know how to evaluate whether it is work related and in what circumstances a case must be reported to OSHA.
OSHA’s guidance states “employers, especially small employers, should not be expected to undertake extensive medical inquiries given employee privacy concerns and most employers’ lack of expertise in this area.”
OSHA states it is sufficient in most circumstances for the employer, when it learns of an employee’s COVID-19 illness, to ask the employee how they contracted the COVID-19 illness; while respecting employee privacy, discuss with the employee their work and out-of-work activities that may have led to the COVID-19 illness; and review the employee’s work environment for potential SARS-CoV-2 exposure.
Among the factors OSHA considers in determining if it is likely a worker contracted COVID at work are:
• When several cases develop among workers who work closely together, and there is no alternative explanation.
• If it is contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case, and there is no alternative explanation.
• If job duties include having frequent, close exposure to the general public in an area with ongoing community transmission, and there is no alternative explanation.
OSHA states an employee’s COVID-19 illness is likely not work-related if he or she is the only worker to contract COVID-19 in the vicinity and the worker’s job duties do not include having frequent contact with the general public or if the employee, outside the workplace, closely and frequently associates with someone who has COVID-19, is not a coworker, and exposes the employee during the period in which the individual is likely infectious.
It is important for employers to examine COVID-19 cases among workers and respond appropriately.
Bret Cote is vice president at Clark Insurance in Manchester. He can be reached at 603-716-2360 or email@example.com. For more information, visit clarkinsurance.com.